Sunday, November 30, 2014

Supervising
chemist can testify in rape case if they independently verified correctness of
DNA results State v.Roach219 NJ 58
(2014)

State v. Reginald Roach (A-129-11) (068874)

[NOTE: This is a companion case to State v.
Julie L. Michaels

Decided August 6, 2014

LaVECCHIA, J., writing for a majority of the Court.

In this appeal, the Court considers whether
defendant’s confrontation rights were violated by the testimony of an analyst
who matched defendant’s DNA profile to DNA evidence left by the perpetrator at
the scene of the offense, but who was not the analyst who performed the testing
procedures that provided the basis for the DNA profile developed from the
perpetrator’s evidence.

The police identified E.A. as a suspect and sent his
buccal swap to the State Lab. On November 16, 2005, Linnea Schiffner, a
forensic scientist with the DNA Department, received H.H.’s sexual assault kit
and the buccal swabs taken from H.H. and E.A. Schiffner was able to create a
full DNA profile for the perpetrator from samples taken from H.H., as well as
profiles for H.H. and E.A. from their respective buccal swabs. She concluded
that E.A.’s DNA profile did not match that of the male contributor to the
samples taken from H.H. Schiffner prepared a report, dated December 7, 2005,
listing the samples that she had tested, setting forth an allele table listing
the DNA profiles, and stating her conclusion that E.A.’s DNA profile did not
match that of the perpetrator.

Subsequently, defendant was identified as a suspect, and,
when police officers stopped him, they found a pair of black gloves and a small
sharpened stick. Defendant’s buccal swab was sent to the State Lab for
analysis. Because Schiffner had relocated to Wisconsin for reasons the trial
court found unrelated to job performance, the H.H. case file and defendant’s
buccal swab were assigned to Jennifer Banaag, another forensic scientist in the
DNA Department. Banaag analyzed defendant’s buccal swab and generated a full
DNA profile for defendant. She then compared defendant’s DNA profile with the
profiles generated from the specimens taken from H.H.’s inner thighs, and
concluded that defendant was the source of the DNA on H.H.’s samples. As part
of this process, Banaag reviewed Schiffner’s report and all the underlying
data, as well as all files relating to the case. Banaag checked “everything”
from the initials and dates on each page to the “data calls” Schiffner had made
in generating the profiles. Banaag issued a signed report, dated February 24,
2006, stating her conclusion that defendant was the source of the DNA found in
the samples taken from H.H., and containing an allele table with the DNA
profile she had generated for defendant and the DNA profiles reported by
Schiffner. Defendant was charged with aggravated sexual assault, burglary, and
other offenses related to the attack on H.H.

The key issue at trial was identity, which turned on
the DNA analysis. Williams and Banaag testified for the State, but Schiffner
did not testify. Defendant objected to any testimony by Banaag about
Schiffner’s analysis, arguing that it was hearsay and violated his right to
confront the analyst who had performed the tests being used against him. The
court overruled defendant’s objection. Banaag testified that she had made an
“independent data analysis for the buccal swab that [she] received, went back
and reviewed Miss Schiffner’s case and made [her] own independent conclusions.”
Banaag went on to state her conclusion that “within a reasonable scientific
certainty . . . Reginald Roach is identified as the source of the DNA profile”
obtained from the samples taken from H.H.

The jury found defendant guilty of aggravated sexual
assault, burglary, and other charges, and the court sentenced defendant to an
aggregate forty-year prison term. The Appellate Division affirmed, and this
Court granted defendant’s petition for certification. State v. Roach,
211 N.J. 607 (2012).

HELD: Defendant’s
confrontation rights were not violated by the testimony of the analyst who
matched his DNA profile to the profile left at the scene by the perpetrator.
Defendant had the opportunity to confront the analyst who personally reviewed
and verified the correctness of the two DNA profiles that resulted in a highly
significant statistical match inculpating him as the perpetrator. In the
context of testing for the purpose of establishing DNA profiles for use in an
expert’s comparison of DNA samples, a defendant’s federal and state
confrontation rights are satisfied so long as the testifying witness is
qualified to perform, and did in fact perform, an independent review of testing
data and processes, rather than merely read from or vouch for another analyst’s
report or conclusions.

1. The Sixth
Amendment to the United States Constitution, made applicable to
the States through the Fourteenth
Amendment, provides an accused the right “to be confronted with
the witnesses against him.” The New Jersey Constitution provides a cognate
guarantee to an accused in a criminal trial. See N.J. Const. art. I, ¶
10. As modern United States Supreme Court confrontation case law has
explicated, the right to confront witnesses guaranteed to an accused applies to
all out-of-court statements that are “testimonial.” Crawford v. Washington,
541 U.S. 36, 68, 124 S. Ct.
1354, 1374, 158 L. Ed.2d
177, 203 (2004). If testimonial, the statement is
inadmissible unless the witness is unavailable to testify and the defendant had
had a prior opportunity for cross-examination. New Jersey’s state confrontation
jurisprudence has followed the federal approach.

2. As explained in the Court’s companion case, State
v. Michaels, __ N.J. __ (2014), also issued today, the Supreme Court
has considered Crawford’s application in three cases involving forensic
reports: Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.
2527, 174 L. Ed.2d
314 (2009); Bullcoming v. New Mexico, 564 U.S.
__, 131 S. Ct.
2705, 180 L. Ed.2d
610 (2011); and Williams v. Illinois, 567 U.S.
__, 132 S. Ct.
2221, 183 L. Ed.2d
89 (2011). In Michaels, supra, this Court
examined those recent decisions and chronicled the development of confrontation
law through Williams, the most recent Supreme Court case, in which
members of the Court authored three opinions that espoused divergent analytic
approaches. __ N.J. __ (slip op. at 17-37). Because a majority of the
Supreme Court failed to accept the analytic approach of the plurality opinion,
this Court concluded that Williams’s force as precedent was unclear. Id.
at __ (slip op. at 43). Accordingly, in this matter, the Court determines to
use the pre-Williams Confrontation Clause holdings on forensic evidence,
as it did in Michaels. (

3. In this matter, defendant modeled his challenge
after Bullcoming, arguing that the opportunity to cross-examine Banaag
is an insufficient substitute for his right to confront the analyst who
actually performed the testing on the DNA evidence left by the perpetrator on
the body of the victim. The Court notes at the outset that Schiffner’s report
was not introduced at trial, and thus finds that this matter differs from Bullcoming
and Melendez-Diaz, where the disputed reports were placed in evidence.
That said, the Court considers defendant’s confrontation challenge with the
understanding that Schiffner’s report was integral to Banaag’s testimony, and
that components of it were incorporated in Banaag’s expert report. The Court
notes, as it did in Michaels, supra, that neither Bullcoming’s
holding nor Melendez-Diaz’s requires that every analyst involved in a
testing process must testify in order to satisfy confrontation rights. __ N.J.
at __ (slip op. at 44). Nor do they lead to the conclusion that in every case,
no matter the type of testing involved or the type of review conducted by the
person who does testify, the primary analyst involved in the original testing
must testify to avoid a Confrontation Clause violation. Ibid. Against
that backdrop, the Court finds that defendant’s reliance on Bullcoming
is unwarranted. Unlike Banaag, the testifying witness in Bullcoming was
a “surrogate” who had no connection to the report about which he testified
other than being familiar with the laboratory’s testing procedures.

4. In reaching its conclusion, the Court draws from
Justice Sotomayor’s separate opinion in Bullcoming, which noted that the
Supreme Court’s holding did not address and, therefore, did not reject,
testimony by a supervisor or an otherwise independent reviewer of data.
Following that guidance, this Court held in Michaels, supra, that
a supervisor could testify about the results of the testing in a report that he
authored, signed, and certified, based upon his knowledge of the laboratory’s
testing procedures and protocols generally and his training and knowledge of
the particular testing involved. __ N.J. __ (slip op. at 4, 67). The
Court finds that its reasoning applies with comparable force to the analogous
circumstance of a non-supervisory co-worker or other independent reviewer, who
is trained in the testing and is knowledgeable about the laboratory’s processes
and protocols, and who testifies based on his or her independent review of raw
data and the conclusions that he or she has drawn from that data. The Court
cautions, however, the testimony must be provided by a truly independent and
qualified reviewer of the underlying data and report, and the witness may not
merely parrot the findings of another. The independent reviewer – just like a
supervisor who signs and certifies a report – must draw conclusions based on
his or her own findings, and his or her verification of the data and results
must be explained on the record.

5. The Court considers Banaag’s testimony against that
backdrop and determines that Banaag sufficiently explained how she used her
scientific expertise and knowledge to independently review and analyze the
graphic raw data that was the computer-generated product of Schiffner’s
testing. Although the Court finds that Banaag’s independent interpretation of
the machine-generated data converted raw data into unmistakably testimonial
material subject to the Confrontation Clause, it holds that confrontation
requirements were satisfied by defendant’s ability to cross-examine Banaag.

6. In response to the dissenting opinion, the Court
notes, as it did in Michaels, that defendant’s confrontation rights were
not sacrificed because he had the opportunity to confront Banaag on her
conclusions and on the facts that she independently reviewed, verified, and
relied on in reaching those conclusions. The Court emphasizes that this is not
a case where the testifying analyst merely read from another analyst’s report.
Rather, Banaag carefully reviewed and analyzed all the underlying
machine-generated data and formed her own conclusions about the results to
which she testified. Accordingly, the Court holds that defendant’s
confrontation rights were satisfied by his opportunity to confront Banaag on
the DNA evidence used at his trial.

JUSTICE ALBIN,DISSENTING, expresses the view that Schiffner’s test results were testimonial
statements that incriminated defendant and thus the Confrontation Clause does
not permit Banaag, an analyst who did not perform, participate in, or observe
underlying laboratory tests, to give surrogate testimony for Schiffner, the
absent analyst who did the testing and recorded the results.